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LIBLICENSE-L  February 2014

LIBLICENSE-L February 2014

Subject:

Re: Charles Oppenheim on who owns the rights to scholarly articles

From:

LIBLICENSE <[log in to unmask]>

Reply-To:

LibLicense-L Discussion Forum <[log in to unmask]>

Date:

Sun, 9 Feb 2014 18:55:43 -0500

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From: Sandy Thatcher <[log in to unmask]>
Date: Thu, 6 Feb 2014 18:50:59 -0600

Consider what typically happens when a scholarly book is published. A
draft manuscript is submitted for initial consideration by a staff
editor. If not turned down right away, the manuscript is sent to one
or more expert reviewers, who usually suggest revisions, either
substantive, stylistic, or both. Once the revisions are made, the
manuscript is reviewed again, and if deemed basically ready for
publication, it is put under contract. But the manuscript may undergo
still further revisions, and usually does, before the manuscript is
sent on to the production department for copyediting. Copyediting may
vary from very light stylistic corrections to very substantial
rewriting. The latter might even rise to the level of the copyeditor,
under the theory espoused by Mr. Hansen, being considered a co-author
of a "derivative" work. The book also goes through one or more rounds
of further inspection in proofs and an index is prepared. When the
book is finally in print, it is THAT version that is sent to the
Copyright Office and registered.

The contract was signed when the manuscript was only part way through
this series of stages. So, does the assignment only apply to THAT
version? Then, theoretically, the further revised and the copyedited
versions may constitute two further iterations of the creation of
"derivative" works. How can the publisher submit a later, revised
"derivative" work for registration if the publisher really only owns
the copyright in the manuscript at the point it was accepted and a
contract signed? Wouldn't a new contract need to be signed to cover
this final version? After all, the index didn't exist at all at the
earlier stage.

Taking the language of copyright law too literally, i want to suggest,
leads to various absurdities. It is similar to the infinite
divisibility of copyright, which in theory allows for copyright in one
work to be held in an enormous number of different geographical
locations. In theory, one could own the copyright in a work only in
Manhattan and not the five other boroughs of New York City, or only
for the west side of Manhattan and not the east side.

As I mentioned earlier, the practice of the Copyright Office seems to
assume that a preexisting work, like a dissertation, is subsumed into
a later work that is a revision thereof. I suspect the CO would treat
different versions of an article the same way.

Sandy Thatcher


> From: "Hansen, Dave" <[log in to unmask]>
> Date: Thu, 6 Feb 2014 16:41:32 +0000
>
> First, I think the focus on copyright law is misplaced. This looks
> more like an issue of contract interpretation.  My opinion is that the
> provisions about pre-prints and post-print versions in most publishing
> contracts is evidence that the parties intended to transfer rights in
> all versions of the article, including pre-existing versions. Why
> include the license back to the author of rights in pre-prints if the
> author already retained those rights? That being said, "contra
> proferentem"--when the contract isn't clear it should be interpreted
> against the draftsman, in this case the publisher.
>
> I'm not as confident as Kevin, however, about whether the different
> versions constitute one "copyright" for purposes of determining
> whether there is one work or a series of preexisting works, all
> derivatives of each other. My hang-up with concluding that there is a
> single copyrighted work is this:
>
> Section 101 of the Copyright Act states that  "[a] work consisting of
> editorial revisions, annotations, elaborations, or other modifications
> which, as a whole, represent an original work of authorship, is a
> 'derivative work'."
>
>  If the changes to the first version of the article don't, as a whole,
> rise to the level of original authorship than those changes are just
> non-copyrightable elements of the original work. Fixed typos, for
> example.  But major changes, e.g., from a pre-print to post-print
> version, would commonly include "editorial revisions," "elaborations,"
> or "other modifications" that are original and creative (so, they are
> "original works of authorship"), and hence constitute a derivative
> work.
>
> Further, right before that definition of "derivative work" in the
> Copyright Act is this statement: "A work is 'created' when it is fixed
> in a copy or phonorecord for the first time; where a work is prepared
> over a period of time, the portion of it that has been fixed at any
> particular time constitutes the work as of that time, and where the
> work has been prepared in different versions, each version constitutes
> a separate work."
>
> The point about the writing process and the ridiculousness of a
> multiplicity of derivatives is well taken, but I think this statutory
> definition takes care of that by differentiating between works
> "prepared over time" versus "prepared in different versions." Whatever
> else that "prepared in different versions" might mean, I think a court
> would probably look at scholarly publishing custom of labeling things
> as pre-print, post-print, etc. and decide that at least those are
> different versions and thus separate works, albeit derivatives of each
> other.
>
> Finally, regarding the hypothetical about a publisher suing and a
> court looking for substantial similarity -- before the court would get
> to the substantial similarity question it would have to determine what
> elements of the publisher version were owned by the publisher versus
> what elements were owned by the author. I think that is largely a
> matter of contract interpretation. If the court concluded that the
> publisher only held rights in a derivative version, "[t]he copyright
> in a . . .  derivative work extends only to the material contributed
> by the author of such work, as distinguished from the preexisting
> material employed in the work, and does not imply any exclusive right
> in the preexisting material. The copyright in such work is independent
> of, and does not affect or enlarge the scope, duration, ownership, or
> subsistence of, any copyright protection in the preexisting material."
> 17 USC 103(b).
>
> So, as I said up top, the whole analysis turns on what the assignment
> of rights covers--only exclusive rights to the copyrightable elements
> of the revised, derivative version, or exclusive rights to all
> underlying, pre-existing versions as well.
>
> Best,
> Dave
>
>
> ----------
> David R. Hansen
> Reference Librarian, UNC School of Law
> Digital Library Fellow, UC Berkeley School of Law
> [log in to unmask]
> [log in to unmask]
>
>
>
> -----Original Message-----
>
> From: Kevin Smith <[log in to unmask]>
> Date: Wed, 5 Feb 2014 14:33:16 +0000
>
> I had really hoped I could ignore this rather muddled controversy,
> mostly due to a lack of time to address it.  But a tweet from Nancy
> Sims, of the University of Minnesota, made me realize that my original
> post used slightly careless language that may contribute to the
> confusion.  So I feel I should set that straight.
>
> I wrote that different versions of an article were derivatives of one
> another.  That is probably a defensible position, but Nancy made the
> point much clearer -- the different versions are still the same work,
> so subject to a single copyright.
>
> Throughout this discussion, the proponents of the position that
> copyright is transferred only in a final version really do not make
> any legal arguments as such, just an assertion of what they wish were
> the situation (I wish it were too).  But here is a legal point -- the
> U.S. copyright law makes the difficulty with this position pretty
> clearly in section 202 when it states the obvious principle that
> copyright is distinct from any particular material object that
> embodies the copyrighted work.   So it is simply not true to say that
> version A has a copyright and version B has a different copyright.
> The copyright is in the expressive content, not in different versions;
> if all embody substantially the same expression, they are all the one
> work, for copyright purposes, because the copyright protects that
> expressive content.  Hence Nancy's perfectly correct remark that the
> different versions are the same work, from a copyright perspective.
>
> Part of the point I wanted to make in my original post is that this
> notion of versions is, at least in part, an artificial construction
> that publishers use to assert control while also giving the appearance
> of generosity in their licensing back to authors of very limited
> rights to use earlier versions.  The versions are artificially based
> on steps in the publication permission process (before submission,
> peer-review, submission, publication), not on anything intrinsic to
> the work itself that would justify a change in copyright status.  If
> we look at how articles are really composed -- usually by composing
> one file and then editing it repeatedly, it is easy to see how
> artificial, in the sense of unrelated to content, the distinctions
> are.  How much time must elapse before a revision is a different
> version?  If I do some revisions, then go have a cup of tea before
> returning to make other revisions, have I created two different
> "versions" entitled to separate copyright protection?  The question is
> absurd, of course, and shows how unworkable the idea of different
> copyrights in different versions of the same work would be.
>
> It has been said that no publisher makes the claim I am here
> suggesting.  But if we look at actual copyright transfer agreements it
> is easy to see that they do.  The default policies for Wiley, for
> example tell authors that they can archive a pre-print and archive a
> post-print, subject to certain conditions, including rules about the
> types of repositories that the archiving can take place in and a
> limitation to non-commercial reuse.  If an author transfers rights
> only in the final version, how can Wiley make restrictions on the use
> of these earlier versions?  The better -- indeed the only logical --
> interpretation is that the copyright that is transferred covers the
> work as a whole, which is the nature of copyright, and that Wiley then
> licenses back to authors certain rights to reuse different versions.
>
> Those version rights are based on what Wiley wants to allow and to
> hold on to, not on any legal distinction between the versions.
>
> Elsevier's policies are similar -- they allow the preprint to be used
> on any website, the post-print to be self-archived on a scholarly
> website ONLY if the institution does not have a mandate and with
> acknowledgement of the publisher, and do not allow any archiving of
> the final version.  Again, all of this is grounded on a claim that a
> copyright that is inclusive of the different versions, because they
> are the same work, has been transferred to Elsevier.
>
> Let's imagine what would happen if a dispute ever arose over a use of
> an earlier version of an article after the copyright had been
> transferred.  A court would be asked to determine if the use of the
> earlier version was an infringement of the copyright held by the
> assignee.  Courts have a standard for making this determination; it is
> "substantial similarity."  So if the re-used version of the work was
> substantially similar to the work in which the copyright was assigned
> -- that language is itself bound up in the misunderstanding I am
> trying to refute -- a court would probably find infringement.  This
> has been that case in situations where the works were much more
> different that two versions of a scholarly article.  George Harrison,
> for example, was found to have infringed the copyright in the song
> "He's So Fine" when he wrote "My Sweet Lord," even though the court
> acknowledged that it was probably a case of unconscious borrowing (see
> Bright Tunes Music v. Harrisongs Music, 420 F. Supp. 177, S.D.N.Y.
> 1976).  And the author of a sequel novel to "Catcher in the Rye" was
> held to have infringed copyright in Salinger's novel even though they
> told very different stories, due to similarities in characters and
> incidents (Salinger v. Colting, 607 F. 3d 68, 2d Cir. 2010).  If these
> very different "versions" of the same work were held to be copyright
> infringement, how is it possible that two versions of the same
> scholarly article could have separate and distinct copyrights?
>
> In many ways I wish it were true that each version had a distinct
> copyright, so that transfer of the rights in one version did not
> impact reuse of the earlier version.  That situation would make
> academic reuse much easier, and it would conform to a basic sense that
> most academics have that they still "own" something, even after they
> assign the copyright.  But that position is contrary to the very
> foundations of copyright law (and not just U.S. law), which vests
> rights in the content of expression, not in versions that represent
> artificial points in the process of composition or publication.  And
> much as this mistaken idea may be attractive, it has dangerous
> consequences; it gives authors a false sense that the consequences of
> signing a copyright transfer agreement are less draconian than they
> really are.  Instead of plying our faculty with these comforting
> illusions, we need to help them understand that copyright is a
> valuable asset that should not be given away without very careful
> thought, precisely because, once it is given away, all reuse of the
> expression in the article, regardless of version, is entirely governed
> by whatever rights, if any, are licensed back to the author in the
> transfer agreement.
>
> Kevin
>
> Kevin L. Smith, M.L.S., J.D.
> Director, Copyright and Scholarly Communication Duke University
> Libraries Durham, NC  27708 [log in to unmask]

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